Subject area: Catnip critique

Saturday, October 31, 2015

The Marasca/Bruno Report, A Dissection In Four Parts: #4 Their Findings - Ambivalent In Spades

Sollecito & Bongiorno: reported as very un-thrilled at the findings RS was at crime scene and lied

Overview

This is my dissection of Part 9, the final 10 pages of the report.

My previous dissections of the Fifth Chambers explanation can be read here and here and here.

Dissections

Each sentence in the paraphrased gist of the repoirt below corresponds to one paragraph in the text.

Cassation (Bruno) – gist: Errors in law and logical inconsistencies mean that the impugned judgment merits being cassated [quashed]. The evidential picture does not reach the standard of beyond a reasonable doubt. It’s not an innovative or “revolutionary” principle and is already present in Italian law, implicitly in Article 530 para 2. Remote possibilities are not ‘beyond a reasonable doubt’(Segura case, 2014) and mere conjecture, even though plausible, cannot found alternative reconstructions (Gurenelli case, 2014, etc) (9).

COMMENT: Citing from cases is a good technique, even to including their names, à la common law systems. Not reaching the BARD standard is the crux of the matter.

Cassation (Bruno) – gist: The contradictory evidence as illustrated by the up-and-down nature of the proceedings through the courts does not reach the BARD standard (9.1)

COMMENT: This is disingenuous. The Perugia Court of Appeal judgment was annulled (except for the calunnia), so calling it into play again as one of the, presumably, “up” side of the ‘swings-and-roundabouts’ of the case as if it were a valid judgment is misleading.

Cassation (Bruno) – gist: An overview of the for-and-against positions can be given (9.2)

COMMENT: Given the appearance of a balanced handling of the matter is a good technique. The assumption that there are for-and-against positions is not clarified or explained, though, merely asserted.

That is, a reading of the evidence as ‘not guilty’, to stand and be opposed to and contrasted with a reading of the evidence as ‘guilty’, involves a circularity of reasoning: it is the ultimate contradiction for the same evidence to support both positions simultaneously.

The result of a ‘not guilty’ conclusion is that the evidence leads there, and away from a conclusion of ‘guilty’. A for-and-against view begins with the conclusion, in order to prove the conclusion: circularity.

Cassation (Bruno) – gist: Presence does not equate with guilt. Passive participation is different to active participation (Benocci case, 2013 etc). The subjective element can be found in voluntary participation and cooperation (Mazzotta case, 2012) (9.3)

COMMENT: Absence of evidence does not equate with innocence (meaning evidence of absence). Quoting from cases is good: it gives the impression something legal is going.

Cassation (Bruno) – gist: Even given their presence, FOR the accused is the absence of their traces in the room or on the body (excluding the bra-clasp, of which more later), and likewise FOR the accused is the presence of Rudy’s evidence. The room is so small that is impossible not to leave any traces if they were murderers. Nothing of theirs was found on the victim’s top or the piece of clothing underneath, whereas Rudy’s trace was found on a sleeve of the top. This makes a clean-up impossible. (9.4)

COMMENT: Declarations of certainty about the consequences of the size of the room are not evidence, no matter how close such declarations seem to be in going ‘beyond a reasonable doubt’. Given an erroneous starting point, impeccable reasoning can be applied, and a conclusion reached.

Cassation (Bruno) – gist: Amanda’s self-described presence is credible in that she described, for the first time, a possible sexual motive for the murder, and the piercing scream. In her calunnia she puts herself on the scene which no-one else (other than those others present, obviously) would have known. According to the calunnia, the scream and the murder is due to Patrick Lumumba. AGAINST: the mixed traces (dilute blood, skin cells) in the small bathroom.

Suspicion is not decisive. The trace is not equivocal – there could have been posthumous contact with the blood. There was no trace in the murder zone or on the body. The reason why she accused is incomprehensible – the psychological pressure theory is weak (fragile). She couldn’t think it would stand up, since she knew well that Patrick had no relationship with Meredith, or that Patrick wouldn’t have a cast-iron alibi. Maybe to cover for Rudy (both men being black), perhaps hypothesising that Rudy had been seen.

The staged burglary scene, for the prosecution, pointed to somebody who knew the victim, but this is ambiguous because it was Raffaele who pointed out to the police that nothing had been carried off. Lies revealed by SMS and Curatolo and Quintavalle are suspicious, but they are scarcely credible witnesses. The enigmatic drug-dealer Curatolo, coming late to the case and no stranger to cases with a strong media presence, is contradicted by the lack of buses, and the masks and joking around of Halloween, apparently counterbalanced by seeing the accused the day before forensic spacemen arrived. Quintavalle, another tardy witness, has nothing specific to add, not even what purchases were made, and identifying in Amanda in the courtroom has no relevance since her image had appeared on all the newspapers and TV news.

The “A” and “I” traces on the knife are neutral, given she lived with Raffaele, and (as said) there were no traces of Ms Kercher on the knife, contrasting with the prosecution hypothesis that it was the murder weapon. It was an arguable choice to test the trace for DNA rather than for what substance it was. Attributing the trace to Amanda is not unequivocal, and is indifferent, since she lived with Raffaele. Even attributing trace “B” to Meredith is not decisive (not being blood), since, with students, it’s plausible that convivial gatherings and other events would require the transport of a knife for domestic use. Starch implies ordinary use; lack of blood cannot lead to a cleaning action since starch is well-known to be absorbent and would have absorbed blood if it had been there.

It’s implausible that Amanda would carry the kitchen knife for protection in her big bag, rather than carry a small flick knife like knife-collector and knife-fan Raffaele certainly had in his possession. Attributing the print in the homicide location to her is, finally, anything but certain. (9.4.1)

COMMENT: ‘All over the place like a dog’s breakfast’. Where to begin? The strong suspicion, reinforced with every statement made, is that Bruno is one sandwich short of a picnic. The main cause is due to taking the defence claims in their appeal papers as if they were the factual basis of a new trial. Which makes Bruno two sandwiches short of a picnic. For a Cassation judge, the picnic hamper and its contents is a serious matter. This whole section, and the following one, are destined to become a classic example.

Cassation (Bruno) – gist: For Raffaele, the picture is likewise. The bra-clasp, the only trace of his, has no certainty, since there is no 2nd amplification, there is no probative value. There is a strong suspicion he was there on the night, but when is not possible to determine. Given Amanda was present, it’s scarcely believable he wouldn’t be with her. Amanda had versions of the “something strange” story and other versions of being present, it’s strange she wouldn’t have called her boyfriend, presumably being ignorant of Italian emergency procedures and having her boyfriend close by. No call, there was no phone record, implies he was with her.

But presence at the scene is not certain proof. Defence arguments are insufficient to remove doubt. Even if Raffaele watched everything, it does not rule out his presence – he could have been at the house, it’s a short distance away, ten or so minutes. Amanda’s claims to have been at Raffaele’s house, countered by Curatalo’s and Quintavalle’s testimony, raises strong suspicion against Raffaele. But their strongly approximative and ambiguous statements cannot, reasonably, lead to certainty, notwithstanding the appeal court’s problematic subjective view on the matter. Suspicions rise from the substantive failure of the alibi about the computers, although it’s not a case of speaking about failed alibis, but rather alibis that didn’t make it. No certainty either about Raffaele’s prints, with their “probable identity”, rather than certainty. (9.4.2)

COMMENT: Reasonable minds can (and often do) come to different conclusions on the same facts. But: Highly trained professional lawyers applied the incorrect methodology?! If Bruno thinks Florence did that, then what’s to stop anyone thinking that Bruno has done the same thing? Curatolo is an enigmatic drug-dealer (and again the media get a look-in), but the enigmatic drug-taking Raffaele isn’t, even with his knife-fetish?

Luckily, enigmas, according to common experience, are not generally the convivial party-going kind, whereof large kitchen knives for domestic use are easily transported. Bruno, and the Bruno Cafe-and-Bar Specials, are ripe for satire (which may be the underlying ulterior intention, subconsciously-speaking: to make a mark, or a stain or a trace, no matter how indeterminate, or, keyword, indecisive.

Cassation (Bruno) – gist: Since the main charge is unsupported, the subsidiary charges also fall. (9.4.3)

COMMENT: True, as a principle.

Cassation (Bruno) – gist: Contradictory probative elements must compel an acquittal. One last question remains to be resolved. Remand of the case to another court is logically linked to the objective possibility of further tests. The response is definitely negative. The traces are so small they cannot guarantee reliability. Amanda’s and Meredith’s computer were burned by the investigators, probably through the wrong electric current causing irreversible damage. The declaratory evidence is exhaustive. Rudy refused and cannot be compelled to testify.

Defence technical requests cannot guarantee clarity, not only because of the amount of time, but the problematic testing (possibility of selective clean-up); obvious irrelevance (tests on Raffaele’s computer), given the possibility, no matter what the interaction, of going over to Meredith’s house; or clearly superfluous, given the completeness of the examination undertaken (for example, the autopsy and subsequent medico-legal tests). Remand of the case would be useless. Annulment of the conviction under charge (A) [=aggravated murder] implies a redetermination of the sentence imposed, which will be set as the same one handed down by the Court of Appeal of Perugia, adequate and just.

And so all other defence submissions petitions requests are to be considered denied, while any lines of argumentation, including those not examined, are inadmissible as being, clearly, related to the mertis. (10)

COMMENT: Repeating of the same wallpaper pattern starting to occur. Which means, there is nothing more to say. Literally.

Cassation (Bruno) – gist: It only remains to dispose the case (11):

Charge (B): extinction of the charge by prescription
The impugned judgment, excluding aggravated calunnia, annulled without remand on charges (A), (D)and (E) on the grounds on not having committed the deed
Re-determine the sentence inflicted on Amanda for the crime of calunnia to three years of imprisonment.
So decided 27/03/2015
Signed
(Bruno, Recorder) (Marasca, President)

COMMENT: Only Bruno initialled each page; Marasca limited himself to signing at the end.

Observations

What have we learned on the first read-through of (the legal part of) the Cassation decision?

That the court is not slave to science, yet Bruno pronounces about repeatability and its scientific significance (which he mistakes for the significance of falsifiability). He makes repeatability a judicial truth. I expect Bruno will be surprised to “learn” that there are sciences where repeatability is not an option, yet they are still science.

That the court is not slave to the expert, yet when the defence claim that international standards have been breached in the collection of evidence, that is accepted as judicial truth.

That a person is not slave to their DNA: the presence of DNA (Raffaele’s on the cigarette butt) is proof of nothing since he was a visitor to the cottage, and the absence of DNA (in the room) is proof of everything since it “shows” (with certainty) that they weren’t there as murderers.

That the court is adept at applying common experience and associated physics, yet Bruno does not hesitate to declare what is and isn’t physically possible (in a small room, say; or with starch grains).

That the court applies logic and common sense and everyday knowledge, yet, in continuously describing the crime as senseless, incomprehensible, and indeed not of the everyday, Bruno looks for sense and rationality, and the not finding of it doesn’t alert him to the possibility that it isn’t there.

That the copy-paste function on junior judge’s computers should be switched off in cases of non compus mentus, or that at the least that copyright payments should be made to defence clerks for usage of the material, to offset their costs.

Others here will pick up the baton on this. I look forward to seeing them run.

Saturday, October 17, 2015

The Marasca/Bruno Report, A Dissection In Four Parts: #3 Their Profound Evidence Muddle

My previous dissections of the Fifth Chambers explanation can be read here and here.

The next two sections (7 and 8) of the Bruno judgment span ten pages. Each sentence in the paraphrased gist below corresponds to one paragraph in the text.

Cassation (Bruno) – gist: As to the forensic evidence, it was collected in violation of international standards. Science is receiving too much weight in the legal sphere, the scientific method does not equate to procedural rules. The judge is no longer the ‘expert of experts’, and genetics is light years from the sphere of the judge.

There is no confidence over science, in the sense that it is no longer to be trusted uncritically. Science is a choice, it must be reasoned. Legal rules are not trumped by science, the court does not automatically accept science, and there are many sciences. Evidentiary rules must be followed. Legal testing of evidence is done by cross-examination.

The court accepts evidence according to various factors, and this reduces the distance between ‘procedural truth’ and substantive truth. Inference is any method which bridges two facts in question, allowing the unknown fact to become known, according to reasonableness and good sense. This bridging can be common experience and direct observation through repeatability, scientific laws of universal application, and logic. Trial judges go from item of evidence to result, giving reasons, with external checks (the validity of experience or scientific law) and internal checks (consistency). (7)

COMMENT: Most of this section is bland platitude (not that there’s anything wrong with that).The ‘violation of international standards’ is accepted as a given, and the emphasis on repeatability (as diagnostic of the scientific method) is preparation of the ground for rejecting any tests that weren’t or couldn’t be repeated. Rudy’s forensic evidence is never referred to, as if it has been sealed off in a cardboard box somewhere.

Cassation (Bruno) – gist: In the current case, there is no new scientific method to examine (like blood pattern analysis) but genetics. DNA is reliable. It is evaluated against international protocols, and their breach. The court below did not hesitate to consider the test results to be indicative evidence. This cannot be accepted by this court. Indicative evidence is not proof, genetic results which are not absolutely certain can be indicative. Identification is probative, compatibility can be indicative.

Collection, conservation and analysis of evidence must follow rules. Criminal Procedure Code Articles 244 para 2, 254 bis. And Article 192 para 2: ‘weight, precision, consistency’, which translates as certainty; certainty cannot be assumed. It cannot be seen how genetic analysis – in breach of collection and preservation protocols – can be weighty and precise in an evidential sense.

There are standards, and there must be repeatability. “In the case at hand, it is certain that those methodological rules have not been absolutely observed (cf, amongst others, folios 206-207 and the results of the Conte-Vecchiotti [sic] tests, deposited with the Perugia Court of Appeal).”

It is enough to consider, in that respect, the knife and bra-clasp; there was a lapse in professional standards (f. 207). The coltellaccio [great big knife] was put in a cardboard box of the gift-organiser kind.

More worrying are the journeyings of the bra-clasp. 46 days, there were other accesses of the crime scene, it was stepped on or at least moved, and the video shows multiple handlings of it with dirty gloves. “Questioned on the reasons for the defective and hasty collection, Dr Stefanoni will say in testimony that, initially, it was not considered necessary to collect the bra-clasp because … [dots in original] the victim’s intimate garment as a whole had been collected.

Nothing of importance was attributed to that small particular, notwithstanding that, in the common perception, it is exactly that closure apparatus that would be of major investigative interest, being manually operated and, therefore, a potential carrier of biological traces useful for the investigation.”

The bra-clasp test is not repeatable (Law [sic] Copy Number), which repeatability is to avoid false positives. The validation/falsification method wasn’t applied; and, significantly, even the RIS of Rome did two amplifications of trace I on the knife-blade. Ask what value such a result is. Scientific truth is not transferable to procedural truth; science is not legal certainty; without precision and weight, it cannot be evidence in court.

An item of evidence can be considered. The court below erred in attributing probative value to genetic results incapable of amplification or which were the fruit of improper recovery and collection procedures. (7.1)

COMMENT: The term indiziario, which cross-maps to ‘item of circumstantial evidence’, I have rendered as ‘indicative’, to bring out how Bruno demotes it. The theme is transferability: transferability of methods, procedures, of truths is not possible; but transferability of DNA is.

The appeal court’s error was to give non-zero weight to zero-weight evidence. Evidence gains zero-weight by not being certain. Certainty is achieved by repeatability, or by following international standards. The three dots (…) are for dramatic anti-climactic effect: meaning Stefanoni is a nincompoop, in other words. Note the spelling of Conti, with an “e”.

And the Voyages of a Bra-Clasp idea is Bongiorno’s and too irresistible to leave out (as with much else).

Cassation (Bruno) – gist: Article 360 of the Code only governs sources of evidence that are mutable; the laws of science involve falsification; probative value is linked to repeatability (7.2)

COMMENT: Interesting jurisprudence. It’s almost as if Bruno is living on another planet. The trope/canard about repeatability in science is an interesting psychological crutch. The accumulation of bizarro-concepts is starting to mount. Individual sentences in the text make sense (sort of), but stringing them together in a too-much-something-in-the-coffee way is starting to ring alarm bells.

Cassation (Bruno) – gist: The missing traces of the accused on the victim have valency. This is a monolithic roadblock on the path taken by the court below in reaching an affirmation of guilt for the current appellants, “already acquitted of the homicide by the Perugia Court of Appeal”. The “selective clean-up” argument is useless and manifestly illogical: it didn’t clean-up the Luminol traces (Luminol is useful for revealing traces of material different to blood).

The clean-up hypothesis is also disproved by the traces in the small bathroom, and since Amanda knew that the other two were outside Perugia and wouldn’t be coming back that evening, there would have been plenty of time to do a proper clean-up.

As for the corridor traces, the SAL cards [work logs] ruled out, on the basis of the use of a particular chemical reagent, that the traces revealed by Luminol were blood – and there is nothing of this in the judgment. Not only that, it is manifestly illogical for the lower court to overrule the defence objection that the bluish Luminol reaction can be produced by substances that are not blood (for example, detergent residues, fruit juice and so on) and that the fluorescent reaction cannot be anything other than blood.

The fragility of the argument is such that, no question, the house at Via della Pergola had never been cleaned. Therefore, it can be categorically ruled out that blood was removed.

Another glaring logical hole is the theft of the phones. The posited reason that it was to prevent the ringtones of the phone being heard could have been accomplished by switching them off or removing the battery. Disrespectful to the proceedings and clearly illogical is the notion of ill-feeling, including the English woman blaming her flatmate for letting Rudy in to use the toilet; Rudy’s “truth” (and admissible insofar as it does not involve third parties) is that he was in the bathroom when he heard Mr Kercher have an altercation with another, female-voiced, person, so that the reason for the altercation cannot have been his use of the toilet.

It is illogical to posit that, in order to support the ill-feeling scenario, the stolen money and credit cards be used, when Amanda and Raffaele were cleared of that charge (f. 316).

It is arbitrary to translate to Via della Pergola a situation Amanda described in a different location, Raffaele’s house: watching a film, taking light drugs, having sex and a good long sleep until late morning the following day; there is no evidence of the influence of drugs, and finding a mixed DNA trace (Amanda and Raffaele) on a cigarette butt instead of doing a DNA-destroying drug test that might have offered useful insights was absolutely irrelevant, given that Raffaele was a visitor to the cottage because of his girlfriend.

The preceding picture is emblematic of the complex architecture of the impugned judgment relating to the substantive reconstruction, starting at paragraph 10, with the title “Conclusive Evaluations”. It is certainly undeniable that the court below required interpretative effort and speculation to fill the large evidentiary holes in the investigation.

Now, it is undoubted that it is the court of merit’s task to reconstruct what happened, not Cassation’s; common sense must be used; it can be logical but must stick to (legal) reality and be based on admitted evidence. Logic and intuition cannot be a substitute for lacking evidence and investigative inefficiencies. In the face of lacking, insufficient or contradictory evidence, the court must acquit under Article 530 paragraph 2, even if morally convinced of the culpability of the accused.

Further, there are holes in the court’s reasoning, for example in saying that Raffaele’s and Meredith’s DNA was found on the knife (f. 321) when elsewhere in the judgment (ff 208) Amanda is trace A, Meredith is trace B, and finally, trace I (unjustifiably ignored in the Conte-Vecchiotti [sic] report) is also Amanda’s. Trace B cannot carry any certainty, being unrepeatable, but nowhere on the knife is there any biological trace attributable to Raffaele (8.1)

COMMENT: Missing evidence is evidence of being missing. Something proves the opposite. What’s the Perugia Court of Appeal (=Hellmann) got to do with anything? The ‘clean-up’ refutation has the hallmarks of Bongiorno technique: to the prosecution suggestion that there might have been a party, her response was, “Where are the balloons, the corks and the champagne glasses?”

Obviously, “clean-up” has a specific meaning to Bruno. Switching a phone off or removing the battery needs fingers and will likely leave traces behind; better a sock and sling-throw into the dark. It’s common sense.

Can Bruno really be so obtuse: the bra-clasp is super-important exactly because it requires fingers, but the phones aren’t (in the hypothetical user’s mind). Drug-testing the cigarette butt is a good idea. Until you think about it: if Raffaele was at the cottage before, after, during, but not at the murder, how can a cigarette butt (with or without ice or cocaine on it) be tied to anything, time-wise?

Applying Bruno’s logic about the typo about Raffaele’s DNA being on the knife, then Bruno’s reference to Conte-Vecchiotti is also a “gaping hole”, because there’s no such people, and refers to a nothing; it’s Conti-Vecchiotti. Same with the nonsense phrase ‘Law Copy Number’ – what’s that? An obvious absurdity.

Therefore Bruno’s judgment is as void as its voids are. That’s logic. Obviously, if someone is stoned in Garibaldi Street, they can’t be stoned at a place two minutes’ walk away. That’s also ‘logic’.

Overall impression so far…

“Suddenly a strange madness took hold of him, a yearning to look once more off the end of the world. It would be his last chance, he thought; …”

There was an episode of Doctor Who last year, where one character was explaining the scientific beliefs of another, and the Doctor asked, ‘Why does he think that? Is he an idiot?’

Good question.

I can’t quite help thinking the choice is between whether Bruno is an idiot, or whether he is merely writing a satire for a student magazine and pretending to be an idiot. Perhaps, in my ignorance, I have not read enough yet, or I have misunderstood what I have read.

There is some logical analysis going on, - and the example of there being no clean-up because if it was Amanda, she would have known she would have had all night, and therefore would have done a proper job of it (!), so because she didn’t, there wasn’t (!!), is a good one – but joining two or more sentences into a coherent thought, and things start to disappear into the mists.

Another leitmotiv: The translation into “certainty” of what characteristics items of evidence must have to be admissible (in common law terms), erases the concept of ‘beyond a reasonable doubt’ from the picture.

Since he’s had multiple months to ‘get it right’, and these gaps remain, it looks as if Bruno’s condition is not a temporary one.

Friday, October 09, 2015

The Marasca/Bruno Report, A Dissection In Four Parts: #2 The Strange Two Unrelated Tracks Approach

Initial impressions of the legal reasoning

A closer reading, or later pages, may reveal a change in opinion might be required. If so, those changes in the post will be noted. Based on experience, the likelihood is that, how a thing starts, is how it will tend to continue. Changing horses in mid-stream, though theoretically possible, is not an everyday occurrence.

Cassation (Bruno) – gist: A European Court of Human Rights decision in Amanda’s favour won’t affect the calunnia conviction, since the accusations were repeated to the Prosecutor (such interviews are institutionally immune to psychological pressure), and she confirmed them again when writing in her note, signed by her, in a moment when she was alone with herself and her conscience. (2.2)

COMMENT: To the defence allegation that it was police pressure that caused Amanda to falsely claim that Patrick was the murderer, the obvious and common sense response that the claim was repeated in situations where no pressure was possible, deflates the allegation.

However, note Bruno’s implicit assumption, that Amanda was behaving rationally, that is, not affected by drugs, impaired mental states, or delusional or incorrect beliefs, is not raised, let alone examined and a factual finding made. (Not that it is in the Court of Cassation’s general remit to make findings of fact, but that is another matter.

And Bruno specifically addresses that point later, so he is not unaware of it.) This way of treating assumptions forms a characteristic pattern, and has implications later. Note that while the murder charges were dismissed, the calunnia conviction was confirmed. This would not be a matter that any PR push for Raffaele would need to be concerned about, as we indeed find.

Cassation (Bruno) – gist: The request is refused to have the Grand Chamber consider the probative value of evidence collected in breach of international forensic standards; witness statements made under a strong media spotlight; and the admissibility of accusatory statements made in the judgment of another court and received into evidence. (2.3)

COMMENT: Bruno can handle the forensics methodology question, Alessi’s bag-of-hot-air statements, and the legal implications of the explicit accusations made in the judgment reasons confirming Rudy’s conviction.

Cassation (Bruno) – gist: The appeal court did not follow Cassation’s ruling on the principles of law involved, namely that the court is not to rely on the original (annulled) reasoning, the court must not trespass into the merits of the case, the court retains the original scope of enquiry, all the facts must be looked at, and the action to take depends upon the type of annulment because there can be errors of law, and errors of logic. (3)

COMMENT: The Florence Court of Appeal did not follow the instructions set down for it by Cassation. This aspect of the rules of law and procedure will take some detail to examine fully, but suffice to say here that Bruno’s own methodology is not automatically immune from the same defects he is accusing Florence of having, merely because it is him saying so. How well does Bruno himself follow the rules?, in other words. Verbal gymnastics and semantic yoga poses are presaged.

Cassation (Bruno) – gist: There were glaring errors. (3.1)

COMMENT: This becomes his leitmotiv, and he actually uses that word when talking of others.

Cassation (Bruno) – gist: There is only one irrefutable certainty in this case: Amanda’s guilt as regards her criminal calumny (calunnia) against Patrick Lumumba; the investigator’s glaring errors and omissions – the intrinsically contradictory complex of evidence is anything but beyond a reasonable doubt (4).

COMMENT: Amanda’s crime against Patrick remains; the evidence is intricate and, due to errors, incomplete, therefore the standard of ‘beyond a reasonable doubt’ has not been met. How it is that the investigator’s actions were in actual error is not established: the implication is that the defence appeal claims are simply being taken on copy-paste trust.

A fair assessment would entail examining the basis of claims that there was forensic error, hearing any counter-arguments, weighing the significance and importance of any such error if it were found to exist, and deciding if it has a bearing and impact on the legal question to be decided – this is all trial-court matter.

People being driven by the media spotlight is another leitmotiv of Bruno’s. It’s almost as if he is embodying what he is saying that others have done.

Cassation (Bruno) – gist: The absurd and incomprehensible death of Meredith Kercher in mysterious circumstances and the international media spotlight forced an increase in the pace of the investigation and a knee-jerk search for someone guilty to display to the international media, and lack of regard for international protocols about possible contamination, led to hurried, incomplete and incorrect investigative activity. The lack of repeatability, breaking one of the most fundamental requirements of the scientific method as established by Galileo, was a flaw. (4.1)

COMMENT: Here is the first clue that the search for a rational motive is not going to be successful: the murder was senseless. The media spotlight provides the logical underpinning, the motive if you will, of why the police made errors: they needed a quick result, and so therefore cut corners. The ‘international standards’ (which are never named explicitly) provide the yardstick against which these cut corners can be measured.

(Which leads to a circular-logic paradox scenario: At the scriptwriters’ workshop for Detectives 101: Writer A: “I’ve got them on the scene now, ready to decide what to do. So how do I get them to cut corners? What are the corners, the international standards?” Writer B: “I don’t know. Make ‘em up. Or download something official-looking off the Internet.” Writer A: “What are their guidelines in real life, though? Surely they don’t go about breaching guidelines on every callout. How did they know about putting on gloves, for instance?” Writer B: “.”)

Cassation (Bruno) – gist: The media and its associated “noise” (in it computer science sense) induced a mythomane seeking to break the long grey day of an incarceration regime, at least for a day; and Rudy the half-truth teller is key: definite traces of him were found in the room and on the victim. (4.2)

COMMENT: Alessi, believed to be a full-truth teller, wanted some fresh air for a couple of hours, so a trip to the courtroom was organised. The media’s fault. Rudy, the known half-truth teller, knows more, because actual traces of him were found in what can be referred to as the ‘murder zone’. Notwithstanding that a person’s traces can be found on a victim, and the person is not a murderer. Bruno is also performing some literary yoga poses in this passage.

COMMENT: This is the crux of the legal use of the inferences available in terms of Bruno’s reasoning. Rudy’s trial and conviction are being treated by Bruno as separate and distinct from the trial of Amanda and Raffaele, rather than logically interlinked: if the forensics against Amanda and Raffaele are flawed, then those against Rudy are not, because his conviction has become definitive. That is an artificial way of looking at it. Inferences can go both ways: if Raffaele’s DNA is the result of contamination, then so could Rudy’s be, for exactly the same reasons; if a person has the victim’s blood on their hands, then that does not make them the (or a) murderer.

Indeed, Rudy explicitly stated he got blood on him while trying to help Meredith (implicitly, this must be the untrue part of one of Rudy’s half-truths). So then Rudy’s conviction becomes a legal fiction, not a representation of what actually happened, and Rudy’s definitive judgment voids itself into nothingness. Bruno avoids discussing this line of thought, for some reason. He also, conveniently, has somehow forgotten about the phrase “acting in company with” in the Criminal Code, again, for some reason (presumably).

Cassation (Bruno) – gist: Rudy’s judgment: The search for a motive for the murder has yielded nothing, in proportion to what has been conjectured: mere disagreement among flatmates, sexual desires (an at least initial consensual act cannot be excluded); and even less for an unknown burglar who graduates from theft, to uncontrollable sexual assault, to gratuitous homicide with such brutal ferocity, unless there was a serial killer in action, which there is no evidence of in the documents that in Perugia, at that time, other homicides of other young women in identical circumstances were being committed. (4.3.1)

COMMENT: This counts as a straw man within a straw man. The Perugian Serial Killer angle almost qualifies as a laughable joke. And what are the chances of finding a traditional rational motive for an irrational (“senseless and absurd”) act? Close to zero, would be the statistician’s answer. The key word is “gratuitous”. Although, the lone-burglar scenario defence gambit gets a drubbing.

Cassation (Bruno) – gist: Rudy’s statements—made in the absence of the people whose rights are affected (a denial of rights), not always coherent and constant (a denial of logic), and somehow involving Amanda (but never Raffaele explicitly), while continuing to maintain his innocence notwithstanding his forensic presence at the scene and on the victim – can only be rejected as inadmissible, and in breach of the requirements for a fair trial. In fact, Rudy as a witness violates his right not to testify after finalisation of his sentence or undergo cross-examination. (4.3.2)

COMMENT: There’s legal yoga posing in this section. The interlinked nature of the trials works both ways: accusations made by the Amanda and Raffaele defence against Rudy in his absence can’t be responded to and cross-examined by him. The bit about ‘not always coherent and constant’ also applies to Amanda and Raffaele. And the bit about Rudy never mentioning Raffaele being on site and present does not sound like it came from Amanda’s defence. On the plus side, Bruno, as editor, did manage to condense the 600-and-more pages of the (Bongiorno) defence appeal down to a couple of dozen paragraphs.

Cassation (Bruno) – gist: The procedural rules were violated when the defence request to re-open argument was refused. The term “relevant”, as in relevant evidence as mentioned in the Code, is mere linguistic decoration (4.4)

COMMENT: There might be some merit in the idea that witnesses are recalled and argument re-opened only when it’s relevant, and not otherwise. The assertion of procedural violation remains just that, though, an assertion. In any case, opposing views are not examined. So how did Bruno reach his decision? A set of reasons without the actual reasons being given – is that what we are looking at?

Cassation (Bruno) – gist: The charge relating to unlawful transport of a knife has exceeded the time limit set by the statute of limitations. (5)

COMMENT: The limitations period expiry gambit is a widely-used defence strategy. Lots of people, including very many in the media spotlight, have taken advantage of it and benefitted from it.

COMMENT: The prosecution are strangely absent from all of this. Did Bruno only have the transcript of the second day’s hearing, after misplacing the prosecution’s or leaving it at the bus stop? In any case, he does not give any indication that he has read it.

Cassation (Bruno) – gist: In first place, the affirmation that determining the motive is substantively irrelevant is an error. Automatically transferring Rudy’s sexual motive to the others doesn’t hold up; the erotic game scenario finds no corroboration; extending a shared and definite set of interpersonal relationships amongst the co-participants is also a species of transfer.

The love-story between Amanda and Raffaele is obvious and even if it appears certain that she somehow, somewhen, knew Rudy, there is no evidence that Raffaele knew him or ever visited him. If Laura and Filomena didn’t know Rudy and are ruled out as murderers, not to do the same with Raffaele is illogical and irrational. (6.1)

COMMENT: The other judges got it wrong about the importance of motive. If motive is essential, then no motive means no crime. And if one person had motive, it doesn’t mean the others must have had the same motive. The love-story appears obvious, but appearing so doesn’t make it so. Calling it a love-story is an interpretation, in any case. How was the conclusion reached and alternative hypotheses rejected? And how does not knowing Rudy socially (beforehand) have a bearing on anything (even motives)? A straw straw-man being invoked?

Cassation (Bruno) – gist: Holding that the exact time of death was irrelevant was also an error. From the phone records, it emerges that the time of death can be set between 21:30 and 22:13. (6.2)

COMMENT: The exact time is needed for a fair trial so the accused can supply an alibi. The prosecution method of picking the middle of the estimated time range is ‘mere’ arithmetic, not science (including gastric). Perhaps Bruno read along the line underneath by mistake on the phone call log printout (if he actually read anything)? Perhaps he just accepted the defence claim at their word? Who can tell?

Pause here and re-energize, before we continue in another post. Bruno’s pattern seems to be shaping up as:

Make assertions as if they are conclusions; show no reasoning for them; exhibit a predilection and fondness for posing (of which more, when we get to the detail); and embody what he alleges the prosecution (and Alessi) have done, namely hastening under pressure and influence of the media spotlight and not following international standards, in this case, of legal reasoning and fairness (plus the implicit backhanders to all those who “got it wrong”).

It’s almost as if this case has provided him with the opportunity of at least a small break from long grey days of unproductive solitude. If so, it’s no wonder his sympathy with Raffaele’s situation of watching mould growing on his cell wall shines through so brightly.

Thursday, October 01, 2015

The Marasca/Bruno Report, A Dissection In Four Parts: #1 The Strange “Dogmatic Assertions” Approach

General Garofano founded Carabinieri labs, has long argued DNA evidence in this case very strong

1. Overview Of This Post

These analyses will be interspersed with the final posts of the Marasca/Bruno report.

A person holding themselves out to be a ‘creation scientist’ may easily make a statement (in the form of a short sentence in an article or of a soundbite on TV).

At which point, it may take a whole book of effort, to examine the background and field(s) of scientific learning and expertise that are involved and to follow the lines of reasoning used (if any), in order to come to a satisfactory assessment of the accuracy and reliability of that statement.

Likewise with the Fifth Criminal Chamber Cassation judgment penned by Bruno. It seems to be full of assertions. And that’s it.

Take, as one example, the international standards that the forensics personnel are supposed to have breached.

2. Example: ‘International standards’

Much has been made of what have been called ‘international forensic standards’, and whether they have been met and what significance the evidence would have had if they hadn’t.

There is also a subtext of what forensic procedure the Italian Scientific Police were actually following and why a breach of those guidelines did not ground a submission by the defence that there had been contamination and therefore that the evidence was unusable.

(Plus also, disposable gloves are called ‘monouso’, that is “single use”, in Italian, and that name seems to have sown some confusion in the minds of the defence lawyers about how such gloves are to be used in actual cases.)

In Italian, there’s a recent textbook, with international contributors:

In all the above, the name of Garofano can be seen (a well-known and highly regarded forensics expert), and the Australian contribution (the last chapter) relates to learnings from the Black Saturday bushfires.

“fictional events can gain currency in the real world” — Jim Fraser, Forensic Science: A Very Short Introduction, (2010) [Oxford University Press, 2010], p 25 (talking about movie scenes showing the effect of an injection of adrenalin into a person’s heart). [ISBN 9780199558056]

The defence aim was to reduce the significance of Raffaele’s DNA being found on the torn-off or cut-off clasp of Meredith’s bra, which clasp was collected on a second, later, occasion from a different location in Meredith’s room a pace or so distant from that in which it had been found originally (beneath a pillow under her body).

The video of the scene showed the clasp being handled by various gloved personnel before being bagged.

One strand of the defence attacked the gloves, arguing that they should have been changed.

What are the actual recommendations on gloves?

Disposable gloves should be ‘changed frequently’:

“The evidence collector must handle all body fluids and biologically stained materials with a minimum amount of personal contact. All body fluids must be assumed to be infectious; hence, wearing disposable latex gloves while handling the evidence is required. Latex gloves also significantly reduce the possibility that the evidence collector will contaminate the evidence. These gloves should be changed frequently during the evidence-collection phase of the investigation. Safety considerations and avoidance of contamination also call for the wearing of face masks, shoe covers, and possibly coveralls.” — Richard Saferstein, Criminalistics: An Introduction to Forensic Science, 10th edition, (2011) [Pearson, 2011], p 286, Collection of biological evidence. ISBN 9780132545792

Gloves should be changed for each new item of evidence:

“One key concern during the collection of a DNA-containing specimen is contamination. Contamination can occur by introducing foreign DNA through coughing or sneezing onto a stain during the collection process, or there can be a transfer of DNA when items of evidence are incorrectly placed in contact with each other during packaging. Fortunately, an examination of DNA band patterns in the laboratory readily reveals the presence of contamination. … Crime-scene investigators can take some relatively simple steps to minimize contamination of biological evidence: 1. Change gloves before handling each new piece of evidence. 2. … 3. … 4. …” — Richard Saferstein, p 288.

Myths about contamination

“There are many myths and misunderstandings about contamination… The first is that all scenes are examined using the highest standard of anti-contamination precautions (suits, overshoes, mob caps, gloves, etc.), which is not the case. … Secondly, the belief that contamination can be completely prevented by wearing the kinds of protection described above and by controlling a scene is unfounded. If you accept Locard’s principle, then you have to accept that any examination of a scene is likely to disturb it and to ‘contaminate’ it in some way. Finally, the assumption that because someone has failed (for whatever reason) to follow recommended operating procedures with regard to contamination does not mean that contamination will necessarily result and have an impact.” — Jim Fraser, Forensic Science: A Very Short Introduction, (2010) [Oxford University Press, 2010], pp 19-20.

The main references to contamination are in R Gennari and L Saravo, “Le tracce”, pp 415-466 (Traces), where they say:

“In the strictest sense, the term ‘contamination’ refers to the introduction into the scene (and even onto an item of evidence originating there) of spurious information corrupting its original nature or state.” (p 449).

“It must be noted, though, that the contaminated item of evidence is not necessarily unusable [emphasis in original]. It is only an item of evidence which has lost its original state: its own characteristics have undergone modification and it has been enriched with other, indeterminate, information. It is necessary to know how to evaluate the impact that this could have had in the question posed or on the information that will be needed to be revealed to reconstruct the crime.” (p 450).

“It is not enough just to wear the personal protection gear to reduce the risk of contamination; it is necessary that this gear be employed in the correct manner [emphasis in the original].

Not changing gloves before touching a new surface is, for example, a source of contamination: DNA, once touched a first time, transfers itself to all the various surfaces touched successively by the same gloves.” (p 451).

And, not to forget, protective gear is worn for the protection of forensic personnel against infection and chemicals (p 452).

So, in summary:

Gloves reduce and minimise the risk of contamination - they do not remove it altogether; contamination cannot be completely prevented. Searching a scene changes it from its original state.

Changing gloves “frequently”, or “each time” a new piece of evidence, or a new surface, is touched.

After putting on the gloves, what counts as a new piece of evidence or new surface in this list?:

bedcover, victim, pillow, bra-clasp, carpet/floor

Coughing or sneezing on the evidence: means the forensic officer’s DNA contaminates the item, not the accused’s DNA.

Following the procedure does not guarantee that the evidence is uncontaminated; following procedure just reduces the potential risk of contamination.

Likewise, not following procedure does not mean the evidence is automatically contaminated.

And even if the item were contaminated, that does not make it unusable.

In Raffaele’s case, if his DNA were transferred via the latex forensic gloves, how did his DNA get there on the glove when it was found definitively nowhere else in the room? Did he spit on his hand and then shake hands with the forensic officer? Now, that would indeed be a breach of protocols, anywhere in the world.

Tuesday, September 08, 2015

This opinion was drafted by several of Italy’s most experienced lawyers and it was filed with the Florence court several months ago.

These passages quoted below raise issues of what the Fifth Chambers under the Penal Code legally can and can not do, with respect to prior rulings of (1) the Supreme Court (the First Chambers which mostly overturned Hellmann in 2013) and (2) the Florence appeal court.

According to this opinion, the Fifth Chambers has significantly overstepped its legal boundaries in brushing aside previous rulings and trying to fulfill the role of an appeal court, or a first-level trial court (the same stretch the First Chambers considered the Hellmann appeal court to have been indulging in).

This is uncharted territory. Judges of the First Chambers and Florence court and the Council of Magistrates all seem likely to side with this seemingly watertight opinion, and so reactions could ripple on for years.

The Fifth Chambers judges might find themselves increasingly beleaguered. And their rulings on evidence items and the investigators and prosecutors and foreign media would all seem to be moot, if the perception grows that the Fifth Chambers should not even have gone there.

the judgment of the [Florence] court remitted to would have been impugnable only for reasons not regarding the points already decided by the Court of Cassation, according to the very clear disposition of Article 628, second paragraph, Criminal Procedure Code. From this it follows that the Fifth Chamber of the Supreme Court, called on to decide the merits of the appeals brought by the accused against the decision of the court remitted to, would have had to consider as inadmissible the appeals presented in violation of the second paragraph of Article 628 Criminal Procedure Code and, in any case, would have had to rigorously conform with the points already decided by the First Chamber and with all the questions of law decided by the same…

the Court of Cassation cannot, therefore, ever adopt decisions on the merits and issue orders of acquittal under Article 530, second paragraph, Criminal Procedure Code.

...two chambers of the same Court of Cassation, the First (the one competent for proceedings in homicide matters, whose decision of annulment is definitive and who had identified and decided questions of law in a definitive and un-retractable manner) and the Fifth (who would have had to decide the appeals presented only on grounds of legitimacy of the defendants’, constrained by what had already been definitively decided by the First) have handed down two absolutely divergent decisions and the second had annulled the Florentine decision, positively excluding any remitting to another court and acquitting the defendants pursuant to Article 530, second paragraph, Criminal Procedure Code.

the judgment of the [Florence] court remitted to would have been impugnable only for reasons not regarding the points already decided by the Court of Cassation, according to the very clear disposition of Article 628, second paragraph, Criminal Procedure Code. From this it follows that the Fifth Chamber of the Supreme Court, called on to decide the merits of the appeals brought by the accused against the decision of the court remitted to, would have had to consider as inadmissible the appeals presented in violation of the second paragraph of Article 628 Criminal Procedure Code and, in any case, would have had to rigorously conform with the points already decided by the First Chamber and with all the questions of law decided by the same…

the Court of Cassation cannot, therefore, ever adopt decisions on the merits and issue orders of acquittal under Article 530, second paragraph, Criminal Procedure Code.

...two chambers of the same Court of Cassation, the First (the one competent for proceedings in homicide matters, whose decision of annulment is definitive and who had identified and decided questions of law in a definitive and un-retractable manner) and the Fifth (who would have had to decide the appeals presented only on grounds of legitimacy of the defendants’, constrained by what had already been definitively decided by the First) have handed down two absolutely divergent decisions and the second had annulled the Florentine decision, positively excluding any remitting to another court and acquitting the defendants pursuant to Article 530, second paragraph, Criminal Procedure Code.

from these starting points in fact and in law which are absolutely undeniable, it emerges that the course of proceedings in this case have been absolutely linear and respectful of the substance of the procedural rules up to and including the Florentine decision.

the Court of Cassation, on the appeal of the Prosecutor-General of [the Perugia] district Court, had in a radical and definitive manner annulled the acquitting pronouncement and had remitted it to the Florentine district court because the same would adopt the consequent decisions of merit in the line of reasoning of the principles of law laid down by the First Chamber of the Supreme Court and of the points decided by it.

These principles of law are by now unmodifiable and unarguable: the [Fifth Chambers] , called on to decide the matter, as a “second opinion”, concerning the appeal of the defendants from the [Florence] judgment below, would have had to hand down a judgment fully within the “railway tracks” of the law, as fixed by the First Chamber, like the Florentine district court did, principles from among which we may cite:

[Umodifiable principle] the principle, in fact the unfailing legal prerequisite of a Supreme Court decision, namely the fact that the Court is precluded from “trespassing into a re-evaluation of the compendium of evidence” (see the judgment of the First Chamber at page 40);

[Unmodifiable principle] the principle of law of the total and holistic evaluation of the probative material, as opposed to the “parcelled-up and atomistic evaluation of the pieces of circumstantial evidence, taking them into consideration one at a time and discarded in terms of their demonstrative potentiality”, which characterised instead, in the negative, the decision of the Court presided by Pratillo Hellmann (see the decision of the same First Chamber at pp. 40 and 41… ). The ancient brocard “Quae singula non probant, simul unita probant” [‘Those which alone do not prove, together do prove’], quoted on p 41 of the First Chamber’s judgment, consecrates in a definitive and unmodifiable manner this requirement of a global and holistic approach in which each individual piece of the jigsaw puzzle of reconstruction of the facts is considered together with all the others in their demonstrative synergy;

[Unmodifiable principle] the principle by which the [Hellmann] court had run afoul of grave shortcomings and contradictory lines of reasoning and in glaring misrepresentations of the outcome, even in the attempted decoupling of the calunnia, by now definitively attributed to Ms Knox, with the result of masking from view the responsibility of the same in the homicide;

[Unmodifiable principle] the principle according to which the testimony of the homeless person Mr Curatolo ought to have been evaluated on the basis of corroboration between his statements and the objective and unarguable circumstances emerging from the trial (such as the fact that the witness had with absolute decisiveness anchored the fact of having seen the two accused in the precincts of the basketball courts of Piazza Grimana, nowadays Piazza Fortebraccio, the evening before the arrival, the following day, at the Via della Pergola house of the men from Forensics in their white coveralls), rather than on the basis of Mr Curatolo’s social conditions and lifestyle (see the cited judgment of the First Chamber at page 50);

[Unmodifiable principle] the principle according to which the definitive conviction of accomplice Rudy Hermann Guede ought to have been taken into account (no. 7195/11, published on 16.12.2010, it also from the First Criminal Chamber of Cassation), Guede having been held to have been extraneous to the simulation of burglary of a house. [A] habitation that, on the night of the murder, was solely at the availability of the victim and of Amanda Knox and from the statements made by the same Rudy before the Perugian district court, according to which Meredith was killed by the two co-accused (see the judgment at pages 55 and 56).

[Unmodifiable principle] The principle by which contamination of the evidence is to be proved by the party invoking it and which, on the facts of the case, no evidence in support had been offered and which the [Hellmann} Court had seriously confused the abstract possibility of the fact with the averment of the fact (see the judgment at page 69).Umodifiable principle] The principle according to which it was a matter of a homicide committed by multiple persons, in concourse amongst themselves (see page 73 of the cited judgment).

Here is a translation of Article 530:

Article 530:

1. If the act does not subsist [541 2, 542], if the defendant has not commited it [541 2, 542], if the act is not an offence or it is not envisaged by law as an offence, that is, if the offence has been committed by a non-indictable person [c.p. 85] or by a not punishable person for other reasons, the judge issues a judgement of acquittal, stating the reason.

2.The judge issues a judgement of acquittal also when there is lack of evidence or it is not sufficient, or there is contradictory evidence that the act subsists, that the defendant has comitted it, that the act constitutes an offence or that the offence has been committed by an indictable person.(1).

3. If there is evidence that the act has been committed in circumstances of a legal excuse or exemption from criminal liability, that is, there is doubt about them, the judge issues a judgement of acquittal pursuant to clause 1.

4. In the event of an acquittal the judge applies security measures, in the cases provided for by law.

And here is a translation of Article 628:

Impugnability of a ruling issued by a judge after remand

1. A verdict that had been issued by a court following a Cassation order of remand, may be impugned through a recourse at Supreme Court of Cassation if the ruling was issued on an appeal instance, and through the mean provided by law if was issued on a first instance level.

2. In any case a verdict issued by a court following a Cassation order of remand may be appealed only on the reasons that do not concern those that had already been decided by Cassation on the order of remand, or for not abiding to disposition of art. 627 paragraph 2.

It’s perhaps helpful to repeat what most of us know. Knox is a serial accuser…

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